At present the predicament confronted by the world at large is Covid-19. It has been declared as “Pandemic” by The World Health Organization and this is a concern for all administrative units of respective countries. India is also endeavouring to control the growth of the Coronavirus through some strict measures.
Amid this crisis, a Lockdown had been announced by the Central Government. The Ministry of Home Affairs published the official notification under Section 6 and issued guidelines under Section 10 of the Disaster Management Act, in which restrictions are imposed on fundamental rights of the citizens of India to move freely and assemble peacefully, guaranteed under Article 19 (1) (b) (d) of Indian Constitution to maintain public order and in the interest of the general public.
To effectuate the lockdown legally, various provisions are being invoked:
1. If someone does not follow the guidelines and escapes “quarantine”, the authorities may issue Section 271 of Indian Penal Code, 1860 which says that “whoever knowingly disobeys any rule made and promulgated by the government for putting any vessel into a state of quarantine or for regulating the intercourse of vessels in a state of quarantine with the shore or with other vessels, for regulating the intercourse between places where an infectious disease prevails and other places, shall be punished with imprisonment of either description for a term which may extend to six months or with fine or with both”.
2. The recourse was taken under Article 256 of the Indian Constitution which stipulates that “every state shall utilize its executive power in conformity with the laws made by the parliament and the central government can give direction on how to implement laws as may whenever it may appear to be necessary under and Article 257 asserts that the state has the executive power to issue orders.
3. Section 188 of the Criminal Procedure Code shall be applied, whereby offender defiance to the directions or order which are promulgated by a public servant causes obstruction, annoyance, injury, riot, affray to any person lawfully employed. The offender shall be punishable with imprisonment for a term which may extend to one month or fine up to a hundred rupees or both in case of minor injury. If such disobedience causes danger to human life, health, safety or severe harm shall be punishable for six months imprisonment or one thousand rupees or both.
4. In several states, section 144 of CrPc is promulgated where more than 5 people are prohibited from assembling in public places. For instance, all the educational institutions were closed and ban on movement of the public, except in case of necessity. To deal with emergency powers are conferred to the Executive Magistrate, District Magistrate and Sub-Divisional Magistrate to impose these restrictions on personal liberties of individuals whether in a specific region, locality or town, to maintain peace and safety of health care this notification is issued by the district magistrate.
5. The biological disaster Covid-19 was handled by the legal and constitutional institutions. The current lockdown has been imposed under Disaster Management Act, 2005 and the National Disaster Management Authority is the central body authorized to conduct effective management of disaster with the Prime Minister as its Chairman. NDA mandates that authorities at the state, centre and district level contrive the plans, policies to overcome form this issue, some of the relevant sections of this Act which shall apply are:
• Section 11(2) deals with the National plan which is prepared by the National Executive Committee in consultation with State Government and other bodies. The plan shall include the measures to be taken for mitigation and the role and responsibilities of different ministries.
• Section 22(h) entitle the state executives to give direction to any department of the government or any other authority regarding actions to be taken in response to this threading disaster.
• Section 24 and 34 empower State and District Executives to regulate the movement of vehicles and entry of people within the affected area. To remove debris, carry out rescue operations and provide shelter, food, healthcare, essential provisions accordingly.
• To curtail the spread of disease Section 35 has been invoked which authorizes the Central Government to constitute inter-ministerial central teams and dispatch them to states to make on-spot assessments, issue directions to the State and report to the Union. The centre shall coordinate the work between various authorities and the deployment of forces for effective implementation.
6. In addition to DM Act, the state government has used Epidemic Disaster Act. Under section 2A, the act allows the Centre to prescribe the rules and regulations to inspect any ship or vessel leaving or arriving in any port and to detain any person planning to leave or arrive.
The Utilitarianism Theory is pertinent in the present circumstance. Jeremy Bentham laid down the proposition to justify his theory that” the state is endowed with the responsibility to maximize pleasure and minimizing the pain of whole society”. Furthermore, John Stuart also articulated its opinion in this theory “individual happiness should be in harmony with societal happiness”, hence the pain of being infected by the virus supersedes the pain of being simply staying indoors. This validates the legality of lockdown. In this ideal scenario, Former Secretary-General, PDT Chary contends “The Doctrine of Necessity, which proclaims loud and clear that necessity knows no law”.
The pandemic has urged the government to suspend work, business, movement, services, and liberty with a complete shutdown of the Indian Justice System to cure the spread of the virus.
The courts have been inaccessible due to which the populace has become powerless as with the implementation of guidelines in lockdown, the police without any sanction of law are pouring in from across the country, forcing persons to perform push-ups, squats, harassing migrant labourers, vandalizing vegetable cart and homeless are evidence of arbitration.
While in this crisis The Supreme Court paved the way for continuous access through the virtual court hearings and the higher courts are hearing urgent matters, the lower courts are entertaining remand cases on this.
Pros and Cons of Virtual Conferencing:
A two-judge Bench in Krishna Veni Nagam v. Harish Nagam4 while dealing with the transfer petition case instituted under Section 13 of the Hindu Marriage Act, 1955, where both parties were not located within the jurisdiction of the same court, referred the parties to participate in the matrimonial dispute cases through video conferencing as the problems were faced by the litigants living beyond the local jurisdiction was acknowledged by the Hon'ble Apex Court that "it is appropriate to use videoconferencing technology where both the parties have equal difficulty due to lack of place convenient to both the parties. Proceedings may be conducted on videoconferencing, obviating the needs of the party to appear in person, wherever one or both the parties request use of videoconferencing,"
In M/S Meters and Instruments vs Kanchan Mehta6, it was pointed by the Hon'ble Apex court that "Use of modern technology needs to be considered not only for paperless courts but also to reduce overcrowding of courts. There is need to categorize cases which can be concluded "online" without the physical presence of the parties where seriously disputed questions are not required to be adjudicated like traffic challans and cases of Section 138 of NI Act"
The Downside of the Video-conferencing is that everyone does not have equal access to properly functioning equipment as well as fast internet. Many lawyers have also articulated their concerns over the fact that virtual court proceedings are not open to the public and only judges, lawyers representing the party and both the parties are permitted to take part in the proceeding. in case of Naresh Sridhar Mirzkar & Ors Vs. In Maharashtra, it has been stated that "public hearings before the courts are fundamental to our democracy and the judiciary as in other countries."
The Supreme Court recently disseminates a press note addressing the above issue and states that the virtual court hearing continues even after lockdown ends. It aims for both the adjudication through an open court system and case proceeding via video conferencing to deliver justice.
The press note further articulated that "open court hearings cannot be considered as a matter of absolute jurisdiction and even the adjournment process also does not demand an open court." However, in the current age where technology is relied upon for every aspect of our lives, virtual courtrooms can in no way “retaliate” against the open court system.
This pandemic is expedient for the digitization of the Indian courts as it helps to reduce the huge backlog of cases before the courts. In the current scenario, the practical perplexity of virtual courts faces a lot of difficulties. Many people and lawyers have difficulty in understanding the digital legal system and internet problems, which can be prevented with some practical training and proper access. In addition, the National Informatics Center needs to create a platform that includes video conferencing and e-filing features.